Federal Court Finds Challenges to Clean Power Plan Premature

June 11, 2015

Legal challenges to the U.S. Environmental Protection Agency’s (EPA) proposed Clean Power Plan, which would limit carbon dioxide emissions from existing power plants under the Clean Air Act, came too early, according to a panel of federal judges.

“Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants,” wrote Circuit Judge Brett Kavanaugh in the court opinion from the U.S. Court of Appeals for the District of Columbia Circuit. “But EPA has not yet issued a final rule. It has issued only a proposed rule. Petitioners nonetheless ask the court to jump into the fray now. They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal. In justiciable cases, this court has authority to review the legality of final agency rules.”

The lawsuit from a group of states and Ohio-based Murray Energy Corp, claimed that the EPA exceeded its authority when it proposed the rule last year. Even though the rule isn’t slated to be final until August, the plaintiffs indicated they were facing steep costs to prepare for it.

“We are obviously disappointed with the court’s ruling today, but we still think we have a compelling case that the rule is unlawful,” said West Virginia Attorney General Patrick Morrisey, who led the states’ challenge to the pending rule. “As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue.”

G7 Summit Leaders Agree to Phase out Fossil Fuels; Deal in Bonn

G7 Countries—Canada, France, Germany, Italy, Japan, the United States and the United Kingdom—have reached a non-binding agreement to cut carbon dioxide emissions of 40–70 percent of 2010 levels by mid-century. This agreement backs earlier recommendations by the Intergovernmental Panel on Climate Change (IPCC).

“We commit to rationalize and phase out over the medium term inefficient fossil fuel subsidies that encourage wasteful consumption,” G7 officials said in a statement. “As we do that, we recognize the importance of providing those in need with essential energy services, including through the use of targeted cash transfers and other appropriate mechanisms. This reform will not apply to our support for clean energy, renewables and technologies that dramatically reduce greenhouse gas emissions.”

The agreement also calls for G7 countries to help poorer countries develop with clean technologies and address risks from weather disasters as well as to intensify their support for vulnerable countries’ efforts to manage climate change. It is intended, in part, to build momentum ahead of the United Nations climate talks later this year in Paris, at which delegates hope to reach a global climate deal.

In Bonn, Germany, where delegates from nearly 200 countries have been working to pare down draft text for that deal, a partial agreement has been reached to slow deforestation and protect regions holding vast carbon stores. The agreement—covering aspects of the scheme called Reducing Emissions from Deforestation and Forest Degradation (REDD+)—resolves outstanding technical issues on the use of REDD+ and provides standardized rules for developing REDD finance. Other, larger policy details such as how finance will flow to those countries that keep forests intact will need to be resolved in Paris (subscription).

Global Warming Pause Refuted by NOAA Study

A new study from the National Oceanic and Atmospheric Administration (NOAA) published in Science refutes a global warming “hiatus” reported in the IPCC’s Fifth Assessment Report.

“Adding in the last two years of global surface temperature data and other improvements in the quality of the observed record provide evidence that contradict the notion of a hiatus in recent global warming trends,” said Thomas R. Karl, director of NOAA’s National Centers for Environmental Information, in a press release. “Our new analysis suggests that the apparent hiatus may have been largely the result of limitations in past datasets, and that the rate of warming over the first 15 years of this century has, in fact, been as fast or faster than that seen over the last half of the 20th century.”

In the Sciencestudy, authors replotted average annual surface temperatures since 1880, accounting for anomalies in temperature readings from ocean ships and buoys. The latter are given greater weight in the dataset because the number of buoys deployed in the world’s seas is far higher today than decades ago and because the accuracy of readings from them has increased over time.

“The fact that such small changes to the analysis make the difference between a hiatus or not merely underlines how fragile a concept it was in the first place,” said Gavin Schmidt, a climate scientist and director of the NASA Goddard Institute for Space Studies, of the study (subscription).

A separate study published Monday in Nature Climate Change faulted IPCC scientists’ communication at the press conference announcing publication of Fifth Assessment Report, noting that to make anthropogenic global warming (AGW) more meaningful to the public the speakers emphasized the record warmth the world had experienced in the past decade yet dismissed the relevance of decadal time scales when journalists enquired about the similarly short pause in global temperature increase. The speakers thereby created uncertainty about what counts as scientific evidence for AGW.

Meet the Author

Tim Profeta is the founding director of the Nicholas Institute for Environmental Policy Solutions. The Nicholas Institute is part of Duke University and focuses on improving environmental policy making worldwide through objective, fact-based research in the areas of climate change, the economics of limiting carbon pollution, oceans governance and coastal management, emerging environmental markets and freshwater concerns at home and abroad. In his role at the Nicholas Institute, Profeta has continued to use his experience on Capitol Hill to engage in climate change debates. His research has focused, specifically, on market-based approaches to environmental regulations—particularly energy and climate change policy. Other projects engage his expertise in environmental law and air pollution regulation under the Clean Air Act.

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